Anti-Discrimination Section in Paid Sick Leave Law Can Affect Policies

My company has had a policy for years that requires employees to work the day before and the day after a holiday in order to receive pay for not working on the holiday. I’m hearing now that this policy may not be legal. Can we continue with this policy?

The new Healthy Families, Healthy Workplaces Act of 2014 (the paid sick leave law that went into effect on July 1) has a broad anti-discrimination provision that will affect your company’s policy.

California Labor Code Section 246.5(c)(1) states that “an employer shall not deny an employee the right to use accrued sick days… or in any manner discriminate against an employee for using accrued sick days….”

Enforcing a policy in a way that denies an employee additional compensation as a result of the employee using his/her accrued sick leave would be in violation of this new Labor Code section. Therefore, if one of your employees called in sick (and had accrued sick leave available) before and/or after a holiday, if you failed to pay the employee the holiday pay, you could be in violation of the anti-discrimination provisions of the paid sick leave law, unless one of the conditions below applied.

You would not violate the new law, however, if:

• the employee didn’t use one of the covered reasons under the Healthy Families, Healthy Workplaces Act as his/her excuse for missing one of those days; or

• the employee did not have any sick leave available.

It would be a good practice to modify your existing holiday policy to reference the limitations to the policy resulting from the new sick leave law, so that your employees are aware of their rights under the law.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

About David Leporiere

David Leporiere joined the CalChamber in 2014 and currently serves as an HR adviser. Specializing in employment and labor law on behalf of businesses and business owners, he also has provided training for employers on a wide variety of employment-related topics, including discrimination, harassment, wage and hour, and leave laws and regulations. He holds a J.D. from the University of California, Davis.